Mary HutchHead of DB SupervisionThe Pensions Board 25 October 2007

Pensions Board UpdateTrustees and Compliance

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Agenda

Pensions Acts 1990 – 2007 Trustees Main Duties E U Pensions Directive ‘IORPS’ Trusteeship Post IORPS Trusteeship Review On-the-spot fines Pensions Board Supervisory Developments

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National Pensions Action Campaign 2007

Part I – Preliminary and General Part II – Establishment of Pensions Board Part III – Preservation of Benefits Part IV – Funding Standard Part V – Disclosure of Information Part VI – Trustees of Scheme*1 Part VII – Equal Treatment

*1Equal Pension Treatment introduced by Social Welfare Act, 2004

Pensions Acts 1990 - 2007

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*2 Part VIII– Compulsory and Voluntary Reporting

*2 Part IX – Miscellaneous Applications to the High Court

*2 Introduced by the Pensions (Amendment) Act, 1996

*3 Part X – Personal Retirement Savings Accounts

*3 Part XI – Pensions Ombudsman*4 Part XII – Cross Border Schemes*3 Introduced by the Pensions (Amendment) Act,2002

*4 Introduced by the Social Welfare and Pensions Act,2005 Social Welfare Law Reform and Pensions Act, 2006 Social Welfare and Pensions Act, 2007

Pensions Acts 1990 - 2007

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Trusteeship under the Pensions Act

In broad terms, main trustee duties are:• to ensure contributions are received • to ensure contributions are remitted • to invest the funds• to pay the benefits• to ensure that funding standard is met• to keep records and accounts • to preserve or transfer benefits• to disclose information • to ensure equal pensions treatment • to apply the resources of the scheme on wind up • to register the scheme with the Pensions Board

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EU Pensions Directive• Directive 2003/41/EC came into force on 23 September 2003 “on the

activities and supervision of Institutions for Occupational Retirement Provision” – “IORPS”

• EU Member States required to implement by 23 September 2005• Directive sets common minimum level of supervision across EU

Member States• Allows pension schemes to operate “Cross-Border”• “Budapest” protocol agreed between pension supervisors on “who

does what and when” for cross-border supervision.Link to Protocol is available on www.pensionsboard.ie

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IRISH IMPLEMENTATION OF IORPs DIRECTIVE

• Statutory• Requirements in Social Welfare and Pensions Act 2005• Underlying Regulations in place by 23 September 2005

• Remake Regulations 2006• Associated tax changes introduced in Finance Act 2005

• Approach• Implements essentials of Directive• No further new supervisory requirements added other than the

essentials of the Directive• Areas affected

• Scheme management• Investment• Funding• Cross-border

Note on Remake Regulations is on www.pensionsboard.ie

Trusteeship Post IORPs DirectiveScheme Management

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Trustee Qualification Requirements

• S59 A(1) – addresses aspect of good repute

• Person shall not act as trustee if: - • undischarged bankrupt / composition

with creditors (and is not discharged)• convicted of fraud / dishonesty• trustee is a company and director is

prohibited under this section• Person subject of declaration under

S.150 Companies Act 1990 (restriction)

Trustee Qualification Requirements• S59 A(2) requires Regulations to be made providing that:

• Trustees must possess (or employ or contract with advisers who do possess) qualifications and experience prescribed in those regulations, and

• Specifying circumstances in which trustees will be regarded as possessing the specified qualifications and experience

• “Qualifications and experience” are those appropriate and relevant to investment of resources of scheme• enter into contract with one/more investment managers to provide

investment service• one of trustees themselves have such qualifications and experience

Trusteeship Post IORPs DirectiveScheme Management

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employ an adviser with qualifications and experience

• Regulations only refer to need for investment qualifications- Act and other Regulations already require appropriate professional qualifications for other aspects of running a scheme.

• Board has power to determine if trustee meets requirements

Trusteeship Post IORPs DirectiveScheme Management (cont.)

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Trusteeship Post IORPs Directive

Trustees Investment Duties• S59 1(b) duty to provide “proper investment of the resources of the

scheme in accordance with regulations and, subject to those regulations, (and S59(2) member directed investment), and rules of scheme”

• S 59 (1A) “Regulations shall prescribe rules which shall be adhered to by trustees in providing for proper investment of scheme resources in particular, in accordance with para (1) of Article 18 of IORPS Directive”

FAQs on Investment Regulations are available on www.pensionsboard.ie

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Trusteeship Post IORPs DirectiveInvestment

Trustees Investment Duties• Regulations set out specific rules that must be applied to pension fund investment

- implement “prudent person” rule as required by Article 18.1 of IORPS Directive• Assets to be invested:

- in manner to ensure security, quality, liquidity and profitability - predominantly on regulated markets (>50%)- in a diversified manner so as to avoid excessive accumulations of risk

• Prohibition on borrowing (except for 1 member arrangements)• Derivatives permitted but limited• Applies to all schemes (no exemption for small schemes)• SIPPs required for schemes with > 100 members

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Trusteeship Post IORPs DirectiveFunding

• Funding Standard (Amendment) Regulations- implement some recommendations of Board’s review of Funding Standard

• Additional grounds for funding proposal – S49 (3)(b)• Adverse experience relating to:-

• price inflation or interest rates underlying actuarial values over relevant period

• increases in pensionable earnings• payment of benefits (other than long service benefits)• AFCs every 3 years

• Also new S59 G – early retirement subject to trustees consent if scheme does not meet Funding Standard

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Trusteeship Post IORPs DirectiveCross-Border

• Part XII of Pensions Act and Cross-Border Regulations• sets out provisions

• Cross-Border Activity• Undertaking in one Member State (Host State) may set up IORP in another

Member State (Home State)• Supervision is by Home State• Prudential rules are Home State• Social and Labour Laws are Host State• Information requirements and investment restrictions may be imposed by

Host State• Co-operation

• Member States must apply Directive• Must create conditions for cross-border membership

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Trusteeship Post IORPs DirectiveCross-Border

Cross-Border Schemes

• Irish approved scheme (Home Member State)

• Trustees apply to Pensions Board for prior authorisation to operate cross-border – conditions set out in S149

• Trustees apply to Board for approval to accept contributions from Host Member State – Section 151

• Approval granted by Board within 3 months• Board must notify trustees and Regulator in Host Member State

Pensions Board Guidelines in relation to Cross-Border Schemes are available on www.pensionsboard.ie

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Trusteeship Post IORPs DirectiveCross-Border

Conditions For Authorisation• Trustees provide written statement in form (available on

www.pensionsboard.ie)• Trustees confirm compliance with Pensions Act requirements: -

• Disclosure of Information• Trustee qualifications• Remittance of contributions• Funding Standard

• Trustees must also supply the Board with: -• AFC where applicable• PB registration number of scheme

• Small IORPS operating cross-border (<100 active and deferred members) must comply with all requirements of Directive

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Trusteeship Post IORPs DirectiveNew Disclosure of Information

Regulations• 1998 Regs. revoked and replaced• Based on Pensions Board recommendations• Some Pensions (Amendment) Act provisions• IORPs Disclosure requirements

New Guidance Notes available in Guidance Section on Board’s website

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Trusteeship Post IORPs DirectiveTrust Based RACs

• Social Welfare and Pensions Act 2007 bring trust RACs under remit of certain provisions of Pensions Act with effect 27.04.07

• Regulatory Requirements: Trustees Duties Scheme Registration and pay fees Remittance and investment of contributions SIPPs (not small trust RACs) Investment obligations Trustees qualifications and experience Disclosure of information (not small trust RACs) Cross-border requirements ‘Whistleblowing’

FAQs on Trust Based RACs are available on www.pensionsboard.ie

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Terms of reference for Trusteeship Review

Evaluate trust model of pension scheme governance

Identify potential regulatory and governance improvements to perform more effectively

Examine supports in place for trustees

Guiding principle

Facilitate competent performance and increased governance standards while minimising additional compliance burdens

Trusteeship Review

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Trusteeship ReviewReview Process

November 2005 to October 2006

Policy Committee and Trusteeship Review Group

Consultation with industry bodies

Examination of recent national and international developments

New academic research and consultation

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Trusteeship ModelAdvantages: Distinct positive characteristics that set it apart

Flexibility associated with trustee discretion and trust law Alignment of interests of scheme stakeholders – act in best interests of

beneficiaries Member trusteeship – democratic and further protection layer Separating scheme assets from employer Ability of a members’ dependants to enforce their rights Tried and tested model

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Key Recommendations

Current trust model should be retained It continues to offer protection to pension schemes that justify its

retention Contracts and master trusts now allow choice Some improvements can be made to enhance member protection

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Key Recommendations

External RegulationTo enhance the standard of scheme administration:

Pension scheme administrators should be registered and supervised

Service level agreements between trustees and administrators should be made compulsory. Guidance on appropriate content should be introduced

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Key RecommendationsTrustee Ability

To increase the standard of trustee ability, and therefore good governance! Employers should automatically arrange trustee training for all

trustees within 6 months of their appointment and every 2 years thereafter and report in annual report

Potential new means of training (e.g. e-learning) should be explored New training content e.g. ethics, service level agreements to be

introduced

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Key RecommendationsInternal Scheme Governance

Guidance on managing relationships between trustees and with employers to be given in new trustee handbook and training

Each scheme should have copy of Pensions Board’s trustee handbook with a trustee checklist

Pensions Board should have power to appoint trustees and authorise an administrator to carry out wind-up processes

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Conclusion of Review

Solution to many of the problems faced by pension schemes is to: create strong and effective governance and administration that:

will enable trustees to minimise risk, and maximise value in their schemes

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On-the-spot fines New form of remedy for specified breaches of the Act commenced on

17 September 2007

Provide an alternative to going to Court

Board gives offender 21 days to remedy the offence and pay an appropriate fine

If complied with a prosecution will not proceed

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On-the-spot fines

Fine for each offence is €2,000 per trustee

More serious matters will continue to be dealt with by going to Court

Coincides with a tougher approach by the Board to offences

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On-the-spot fines Specified breaches are not new Mainly administrative–type breaches

– Scheme Registration– Disclosure of information– Request for information– Submission of AFCs– Procedures for transfer payments– SIPPs– Increases to pensions in payment

See Pensions Board Trustee Checklist on www.pensionsboard.ie

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On-the-spot fines Breaching the Pensions Act is breaking the law

Timescales are generous, no real excuses

Breaches will result in fines or prosecutions

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Pensions Board Supervision Developments

• Supervision function divided into 2 teams– Defined Benefit Supervision headed by Mary Hutch– Defined Contribution Supervision headed by Philip Dalton (to

include PRSAs, DC OPS, Trust Based RACs)

• Move to risk-based supervision• More focus on administration• On-site and off-site supervision

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Other Developments• Green Paper published – consultation process commenced• Booklet on Hybrid Pensions published• Implementation of Trusteeship Review expected in Social Welfare and

Pensions Bill 2008• Trustee e.learning in development• Women and pensions research• Review of IORPs Directive in 2008

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